Wednesday, 8 May 2019

New amendments to the GPDO

I have been keeping a look-out on the UK Legislation website for the expected amendment to the GPDO, searching (not unreasonably) under “General Permitted Development Order”, but MHCLG were too clever for me, and sneaked these amendments out in an SI entitled The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 [2019 No. 907]. These regulations were made on 1 May, laid before parliament on 3 May and will take effect on 25 May. Part 2 of these Regulations sets out the amendments to the GPDO.

Part 1, Class A of the Second Schedule to the GPDO (larger domestic extensions) is amended by omitting the words “until 30th May 2019” in paragraph A.1(g), and by omitting sub-paragraphs (13), (14) and (15) in paragraph A.4, thus making this class of PD permanent. This amendment also removes the requirement for the developer to notify the LPA of the completion of the development.

A new Class of PD has been added to Part 3. This is Class JA, which permits a change of use of a building from a use falling within Class A1 (shops), Class A2 (financial and professional services), or Class A5 (hot food takeaways) or from use as a betting office, pay day loan shop or launderette, to a use falling within Class B1(a) (offices). I don’t propose to comment on the detailed provisions of the new Class of PD here, other than to note that there is a qualifying date of 29 October 2018 for the pre-existing use, and a floorspace limit of 500 sq m. The usual exclusions will apply, and a prior approval application is required in respect of transport and highways impacts, noise impacts from neighbouring commercial and retail premises, and any impact that the development may have on the availability in the area of services of the sort that were provided by the pre-existing use.

In Class M (residential conversion from A1 shops, A2 offices, etc.), A5 take-aways have been added to the pre-existing uses that can be changed to residential, together with a clarification of the retail impact assessment that is required.

There is also a slight clarification of the floorspace limit in Class Q (residential conversion of an agricultural building). This provides that the floor space of any [one] dwellinghouse developed under Class Q must not exceed 465 square metres. I must confess that this is how I already read Class Q (as amended in 2018), so I am not sure why it was thought necessary to insert sub-paragraph (ba). This amendment does not affect the cumulative floorspace that can be developed under Class Q, which for the reason previously explained in this blog may be up to 865 sq m in total (if larger and smaller dwellinghouses are developed in the appropriate combination).

Finally in Part 3, there is a minor updating of paragraph W so that paragraph W.10(b) now refers to the February 2019 version of the NPPF in place of the original (2012) version. The same amendment is made elsewhere in the GPDO where references were previously made to the older version of the NPPF.

Part 4, Class D (temporary use of various business premises) is amended by enlarging the uses to which the use of the specified business premises can be changed to include, in addition to those previously listed, Class D1(a) (the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner), Class D1(d) (the display of works of art (otherwise than for sale or hire)), Class D1(e) (museum), Class D1(f) (public library or public reading room), or Class D1(g) (public hall or exhibition hall). The single period during which the premises can be put to another use under this Class of PD is also extended from 2 years to 3 years.

I have deliberately omitted some of the more obscure amendments made by these Regulations, but will just note finally the amendment to Part 16, Class A (PD for electronic communications code operators), which, as previously promised by the government, now excludes from this Class of PD the installation, alteration or replacement of a public call box. Part 3 of these Regulations also amends the Control of Advertisements Regulations to remove the whole of Class 16 from Part 1 of Schedule 3, which gave deemed consent to advertisements displayed on telephone kiosks. Thus the provision of telephone kiosks now requires planning permission, and the display of any advertisements on them now requires advertisement control consent. No doubt there will be rejoicing in local planning authorities and dismay among telecoms operators and outdoor advertising companies. This could also lead to the removal of many remaining telephone boxes, where advertising revenue can no longer be obtained to support their continued provision (an example, perhaps, of the Law of Unintended Consequences).

[For the avoidance of doubt, I should make it clear that where a prior approval application for the erection, alteration, etc. of a public call box is pending on 25 May, it must continue to be processed and, if refused, an appeal against that refusal can still be made and /or determined after that date. Secondly, a surface of a public call box which was used for displaying an advertisement on or before 24 May 2019 may continue to be used for that purpose.]


Friday, 3 May 2019

Supreme Court to consider ‘implied’ conditions

I reported in this blog on both the High Court judgment [ [2017] EWHC 2412 (Admin) ] and the decision of the Court of Appeal [ [2018] EWCA Civ 844 ] in Lambeth LBC v SSCLG.

This case has been appealed to the Supreme Court, and is due to be heard on 21 May.

It raises an important issue as to the extent (if any) to which conditions may be implied in a planning permission where an express condition has not been included in the permission.

If, as is likely, judgment is reserved, we may get the result in June or July.


Monday, 29 April 2019

Further changes to Permitted Development

I have not commented recently on the current and future prospects for permitted development. To summarise briefly, in Part 3 of the Second Schedule to the GPDO, the government has announced that it will not now be further extending Class P (residential conversion of storage buildings which have been in B8 use) when it expires in June of this year. Class PA (residential conversion of light industrial buildings which have been in use within Use Class B1(c)) is due to expire next year, and my perception is that this too is unlikely to be extended.

As regards other PD (and related provisions in the Use Classes Order), following a consultation exercise which ended in January, the government proposes to amend Use Class A1 (shops) so as to embrace a wider range of permitted uses and ancillary uses. They also intend to introduce a new permitted development right to allow shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, payday loan shops and launderettes to change use to an office (B1) and to allow hot food takeaways (A5) to change to residential use (C3).

The current temporary change of use in Part 4, Class D will be extended from two to three years and its scope will be enlarged to enable more community uses within this Class of PD.

Although it remains controversial, the government intends to press ahead with a permitted development right to allow upward extensions of certain existing buildings in commercial and residential use, although this will not go ahead immediately.

Larger residential extensions under Part 1 are to be made permanent, but they will be subject to a fee increase.

The government appears to be responding to recently expressed concern regarding the size and quality of residential accommodation being created under Class O (and presumably also under Classes M and N), and will now consider these issues, with a view to possible amendments to introduce a greater measure of regulation for these developments. [I will comment below on recently-announced Labour Party policy on this issue.]

The government, however, has not yet given up on its idea of a PD right that would allow commercial buildings to be demolished and replaced with residential development, although it is clear that any such change is not imminent.

Finally, as predicted following recent litigation on the issue, the government intends to remove the permitted development right under Part 16 and associated deemed consent under the Control of Advertisements Regulations in respect of new telephone kiosks.

Those changes that the government has definitely decided to bring forward are promised “in the Spring” (although seasons are a very flexible concept where government is concerned!). The more complex [for which read “controversial/difficult”] matters, including upward extensions, have been pencilled in for the “the Autumn”. [UPDATE: The first tranche of GPDO amendments was made on 1 May, and comes into effect on 25 May. See the blog post above dated 8 May 2019.]

Meanwhile, the Labour Party have announced an intention (if or when they return to power) to put an end to PD under Class O (residential conversion of office buildings which have been in use within Use Class B1(a)). Offhand, I don’t know whether they also intend to bring to an end PD under Class Q, or any other Classes that involve residential conversions, or other changes of use of agricultural buildings, but if a Labour government were to put an end to Class O it is quite likely that they would also cancel Class Q and maybe certain other PD rights.

Before this could happen, of course, there would have to be a General Election (not currently due until 2022, unless the current mess over Brexit results in an earlier election). However, Labour would have to win that election, which is by no means certain; another hung parliament cannot be ruled out.

As with so much else at the moment, much of what is mentioned above will depend on the outcome of the parliamentary battles over Brexit, and any political fall-out that might ensue from events in parliament in the next few weeks and months.

The government has clearly decided not to risk putting “the Deal” before parliament again before this week’s local elections (where the Tory Party is variously predicted to lose 500, 800, or even a thousand councillors, not to mention control of quite a few local authorities).

There appears to be continuing uncertainty over the government’s next move, although introduction of the Withdrawal Agreement Bill in the next week or two seems to be the most likely way forward. But in the absence of agreement with the Labour Party, this remains a risky step to take. If the Bill were to be defeated on Second Reading, the government might be forced to bring the present parliamentary session to an end (which was in any event due to expire in May), and re-introduce the Bill in the next session of parliament, which would then commence more or less immediately. No.10’s hope, however, would appear to be that they could squeak through on Second Reading, in which case they intend to continue the present session of parliament until the Autumn if necessary, while the Bill continues its passage through both houses.

This makes our participation in the elections for the European Parliament on 23 May unavoidable, as there is zero chance of getting the Withdrawal Agreement Bill through all its stages by 22 May (although the government appears then to be thinking of 30 June as a fall-back date, to avoid the new MEPs having to take their seats at the beginning of July). Having got through Second Reading (if they do), the government would no doubt introduce a timetable motion (the “guillotine”) in an attempt to curtail debate on the Bill, but this may well be opposed, and might be defeated, leading to a long parliamentary battle over the detailed provisions of the Bill.

A sound ‘drubbing’ for the government in both the local elections and the European elections three weeks later could precipitate a political earthquake within the Tory Party, and there is no knowing what might then happen. Labour may be tempted to try their luck with another No Confidence motion in the Commons, and a General Election could not then be ruled out.

So the future of Permitted Development may well be at the mercy of much larger political forces, and I for one am certainly not venturing any predictions as to the eventual outcome.


Thursday, 25 April 2019

Holiday lets revisited

I don’t usually report on planning appeal decisions, but I did prick up my ears at a decision in Cambridge [3196460] which was issued on 4 March. This related to conjoined appeals against a series of enforcement notices which had alleged a change of use of 13 flats from Class C3 dwellinghouse to ‘short-term visitor accommodation’. Each flat was a separate planning unit, and so each of the enforcement notices related to an individual flat. There was no dispute that the lawful use of these flats had originally been as separate private dwellinghouses. The issue before the Inspector was whether the manner in which each of these flats was being used still fell within Use Class C3 or whether the manner in which they were now being used (i.e. to provide short-stay serviced accommodation) amounted to a material change of use in each case.

The flats had been typically let from 3-4 nights per week (as a minimum) up to approximately 10 nights. In some other cases, the flats were let for longer periods. However, the evidence showed that 77% of the lets were for one- and two-night stays. This evidence also indicated that there were over a thousand different bookings for the 13 flats over an 11-month period from March 2017 to January 2018, and that the 13 flats were occupied 80% of the time. Some of these flats had been used as short-stay serviced accommodation since November 2011, whilst others had been similarly let since July 2015. The staff or agents managing the lettings provided a basic ‘welcome pack’ with linen and towels changed on a weekly basis [which was the sole extent of the ‘servicing’ provided] and neither of the two apartment blocks in which these flats were situated had any communal facilities.

It was stressed on behalf of the appellants that the service provided in the flats was very limited and that it was not at the same service level provided for hotel guests or some other serviced apartments in Cambridge. The business was now ‘geared around corporate lets’ and it was the appellants’ intention to have less of a turnover of residents by progressively providing longer lengths of stay. The appellants referred to the differences between the apartments that were the subject of this appeal and other serviced apartments in Cambridge. In particular, they stressed that the serviced apartments (flats) that were the subject of this appeal were indistinguishable from the other ‘conventional’ flats, including other apartments in the same blocks that were the subject of Assured Shorthold Tenancy Agreements. It was therefore contended that all these flats were clearly in Use Class C3. This was on the basis that a spectrum of uses, from Class C1, through a sui generis residential (hybrid) use, to one which is clearly in Class C3 use, all share indistinguishable characteristics as residential dwellings. So the appellants’ contention was that all of the flats the subject of these appeals had remained in Use Class C3 residential use, despite the short-term lettings.

The LPA, on the other hand, contended that, in each case, there had been a material change of use of the flat. The Council acknowledged that the apartments contained all of the facilities to enable a Class C3 use to occur. However, due to the typical rental periods, the frequencies of turn-over of the accommodation and the character of use, the Council contended that the use of the apartments did not fall within Class C3 use, as defined in the Use Classes Order. The Council relied on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202, on which I reported in this blog on 27 October 2012 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’.. The Council considered that, as a matter of fact and degree, a material change of use of each of the apartments the subject of these appeals had taken place. They accepted that Class C3 dwelling houses can involve occasional changes in occupation, but they argued that there is a fundamental difference between, for example, a tenancy change and the high frequency of change in occupation that occurs with the ‘Airbnb’-type uses which had been carried out in the appeal premises.

The Council asserted that usage for short-term periods was likely to be by single individuals or couples and that the impacts of usage were both individual to each apartment block and cumulative, due to their location adjacent to each other. In considering the character of usage, the Council felt that this generated an increased likelihood of early and late arrivals; the uncertainties relating to location, uncertainties regarding access and parking; the need for specific instructions; the fact that the flats were not their homes; the fact that they are guests of the appellant company; the fact that the flats were servicing the tourism sector of the market as opposed to serving the residential market of Cambridge and that guests would not typically be invested in the local community.

Overall, the Council had concluded that the short-term letting use was somewhere between a C3 dwellinghouse and a C1 hotel use. As such, they argued, it was a sui generis use. The Council was also concerned about the transitory nature of the letting use and consequently that some visitors could demonstrate less respect and consideration for neighbours than might be the case for permanent residents. In support of this view the Council referred to reviews by some visitors which were evident from the booking website. Some of these included references to surrounding apartments being ‘incredibly noisy’; ‘noisy guests next door all night long’ and noise levels from other guests being ‘unbearable’. (On the other hand, none of the permanent residents in any of the neighbouring flats in either of the two apartment buildings had complained about any impact on their amenities.)

In assessing these appeals, the Inspector observed that the ‘Moore’ case had established the correct approach to be taken when considering whether or not a material change in use from a dwelling house (Use Class C3) to a holiday or commercial residential use (sui generis) has occurred. It was accepted by both parties that these appeals turned on whether or not, as a matter of fact and degree and based on the particular characteristics of the use of the apartments, a material change of use had occurred.

The Inspector in the ‘Moore’ case considered that there were a number of distinct differences between short term holiday accommodation and a Class C3 use. These included the pattern of arrivals and departures; any associated traffic movements; the likely frequency of party-type activities; the potential lack of consideration for neighbours and other factors which differed from a private family use of the property. Although the uses in the instant appeals could not be compared exactly with the situation in the ’Moore’ case, the Inspector considered that the potential for similar impacts on amenity were the same. The Inspector recited his various concerns in this regard.

In summary, therefore, it was the Inspector’s view that, as a matter of fact and degree, the variable nature of the transient uses of the properties had resulted in a distinctly different character of usage from that of a Class C3 use. He acknowledged that the services provided are not anywhere near a full hotel service. Nevertheless, the flats were let as separate suites of accommodation; they were let and advertised as a hotel might be and, most importantly had been let for many 1- or 2-night stays. On the basis of all of the submissions and his site visit, the Inspector concluded that the character of usage relating to all 13 appeal flats had become significantly materially different to the more permanent residential character of neighbouring flats which were subject to the Assured Shorthold Tenancy Agreements. These differences had amounted to a material change in use of each of the flats in question. It followed that in each case there had been a contravention of planning control and all the appeals were, therefore, dismissed on ground (c).

In commenting on this appeal decision, I should stress first that the Inspector was entitled to reach his own conclusions on issues of fact, and he clearly stated that his findings were made ‘as a matter of fact and degree’. The second point is that, as an appeal decision, this is not in any way legally binding, but it is nevertheless an interesting example of the way in which the relevant legal principles may be applied in practice in appeals of this nature.

This appeal raises a number of interesting points, which are not necessarily confined to holiday lets, but may apply to other alleged changes of use. The first point to be borne in mind is that, if a use remains fairly and squarely within one and the same Use Class, no amount of intensification of that use will amount to a material change of use (see, for example, Kensington & Chelsea RLBC v SSE [1981] J.P.L. 50). A problem may arise, however, if the character of the use changes in such a way as to take it outside the scope of the Use Class within which it originally fell. Decided cases include examples of changes in the use which did not alter the character of the use to such an extent as to amount to a material change of use (e.g. R (Manning) v South Lakeland DC [2005] EWHC 242 (Admin), and Herts CC v SSCLG[2012] EWCA Civ 1473) The classic case in which a change of use certainly had taken place was Wallington v SSW [1991] 1 P.L.R. 87, where the keeping of pets (which is usually a legitimate ancillary or incidental use of a single private dwellinghouse) had grown to such a degree, in that case keeping 39 dogs on the premises, as to change the character of the use in way that took it outside the scope of Use Class C3, and made it a mixed (sui generis) use as a dwelling and for the keeping of dogs. The Moore case, cited in this appeal decision, is an example of a holiday let being or becoming so different in character compared with an ordinary residential use within Use Class C3 as to amount to a change of use.

One further point, which was only touched on lightly by the LPA in presenting their case, and which does not seem to have been a factor in the Inspector’s decision here, is the possibility that a use (such as a holiday let) may, in principle, fall within the same Use Class as the pre-existing use, and yet have such an impact in planning terms as to give rise to a material change of use, even in the absence of any environmental impact as such. This possibility was first suggested by Lord Denning in Wakelin v SSE [1978] J.P.L.769, but was most clearly demonstrated in the cases of Richmond-upon-Thames LBC v SSETR [2001] J.P.L 84 and R (Kensington and Chelsea RLBC) v SSCLG [2016] EWHC 1785 (Admin). Both of those cases were concerned with the loss of housing units (through the amalgamation of dwellings) in areas where there was high demand for housing, particularly in the form of smaller units. It strikes me that the use of flats and similar residential accommodation as holiday lets, if this were to amount to more than a purely temporary interruption in their normal residential use, might well give rise to precisely the same considerations. There is, of course, legislation on this in Greater London, but LPAs elsewhere, faced with a situation similar to this enforcement case in Cambridge, might well consider the applicability of the principle established in the Richmond and Kensington & Chelsea cases, if the use of flats for holiday letting has the effect of reducing the availability of housing units to meet high demand for housing in their area.

This suggests that the government should perhaps revisit the Use Classes Order, and possibly introduce a separate and carefully defined use class for holiday lettings, so that these could no longer be embraced within Use Class C3. In the meantime, however, further cases such as Moore and this latest enforcement case in Cambridge are likely from time to time to trouble the Planning Inspectorate, and possibly the courts.


Thursday, 4 April 2019

Court of Appeal cuts scope of POCA confiscation orders

[The last few paragraphs of this post were slightly revised on 2 May 2019 in order to make my concluding remarks clearer.]

I have no particular interest in POCA as such, but there have been several important cases relating to planning enforcement prosecutions which have resulted in some spectacularly large confiscation orders. The Court of Appeal, however, seems to think that LPAs have been getting rather over-excited at the prospects of obtaining juicy confiscation orders, and in a couple of cases on which I have previously blogged the Court has cut down on the scope for these orders being made. There is now another Court of Appeal decision in which a confiscation order in the Crown Court has been drastically reduced.

This is the case of R v Panayi [2019] EWCA Crim 413. The appellant was convicted in the Magistrates’ Court in 2016 of failing to comply with an Enforcement Notice (under section 179 of the 1990 Act). He was committed to the Crown Court for sentence and for a confiscation order to be considered under the Proceeds of Crime Act 2002. The Crown Court made a confiscation order in the sum of £95,920 and fined the appellant £25,000.

The breach of planning control (comprising the construction of a mansard roof extension on his property which materially exceeded the dimensions for which planning permission had been given) was the subject of an Enforcement Notice that had been served as long ago as 2003. An appeal against that notice under section 174 was dismissed in 2004, but time for compliance was extended by a year to February 2005.

Correspondence between the LPA and the appellant about his non-compliance with the EN began in 2006, some 21 months after the expiry of the compliance period. However, some five months later, the Council eventually wrote to the appellant stating the Council would not at this time be prosecuting for the non-compliance of the enforcement notices, relating to the construction of the roof extensions at the above addresses, but adding that should there be any further serious breaches of planning process the authority would consider taking legal action. (It appeared from a council report made some years later in 2014 that in 2007 the council had felt that it would not to be in the public interest to prosecute the appellant at that time.)

In view of that letter, the appellant took no steps to comply with the Enforcement Notice. He continued to use the property with the roof extension as built which was let out as two flats on which he received rent. It was accepted on the appellant's behalf that his conduct remained unlawful. There was no planning permission and the Enforcement Notice, although it had not been the subject of a prosecution, had not been withdrawn.

In 2014 the appellant sought to regularise the position by applying for an LDC to establish that the existing use of the roof extension as top floor flats was lawful. That application was rejected by the council and an appeal was unsuccessful (as it was bound to be as an LDC cannot be granted in respect of development that is the subject of an extant enforcement notice).

It seems that it was the dismissal of the LDC appeal in 2016 that prompted the council to reconsider the question of prosecution. The council decided that it would institute a prosecution and did so by summons issued on 28 June 2016. The offence alleged in the summons was:

"On or about 18 February 2016, you being the owner of 282-284 Caledonian Road, London, N1 1BA breached an Enforcement Notice issued by the London Borough of Islington on 22 August 2003 in respect of unauthorised developments at 282-284 Caledonian Road by failing to comply with the remedial action required in Schedule 4 of the Enforcement Notice, contrary to section 179(1) and (2) of the Town and Country Planning Act 1990”

When the matter came before the Crown Court for sentence, the Council was seeking a confiscation order in the sum of £243,817.98, calculated on the basis of the gross rental income from the two self-contained flats occupying the unauthorised enlargement of the mansard roof space, from the date of non-compliance with the Enforcement Notice (12 February 2005) to the date of conviction (26 September 2016). This figure also included an allowance for inflation. However, by the time of the hearing in the Crown Court, it was common ground that this was not a case of general criminal conduct and therefore the lifestyle presumptions in POCA were not applicable in this case, so that what needed to be assessed was the benefit from the appellant's particular criminal conduct.

The Crown Court judge rejected the appellant’s submission that the only period of time which should be considered was the period between the issue of the summons and the conviction, on the ground that this did not reflect the criminality of the appellant's actions, but the judge accepted that the letter sent by the local authority in March 2007 (when it said that it would not be taking any action at that time) meant that it was asserting that it was not then in the public interest to prosecute and so this also needed to be taken into account. The Crown Court was therefore faced with a difficult balancing act but, taking all the factors into account, the judge assessed the benefit to be £95,920 and ordered that sum to be paid within the next three months, with one year's imprisonment in default.

In the Court of Appeal, various points were canvassed on behalf of the appellant but, in the event, the case turned on a single point, namely the terms of the offence that had been alleged in the Magistrates’ Court summons. The appellant was charged with being in breach of the Enforcement Notice "on or about 18 February 2016". That charge, in their lordships’ judgment, had to be interpreted as relating to a criminal offence committed on a single day. Thus the charge related only to a single day in February 2016, on or about the 18th of that month. That was the only criminal conduct of which the appellant was convicted. It was for the council, as the prosecuting authority, to decide the period over which the conduct charged should extend. Section 179(6) of the 1990 Act states clearly:

"An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence."

Here the council chose to charge by reference to a single day. The Court of Appeal therefore addressed the question as to whether the calculation of benefit for the purpose of confiscation proceedings can extend over any greater period; specifically, whether it can extend in respect of the whole period from the expiry of the period for compliance to the date of conviction.

By the time of the hearing before the Crown Court, the prosecution had accepted that this was not a case of general criminal conduct and therefore the point was not pursued in submissions before him. Nevertheless, the Court of Appeal re-considered this point. Section 6 of POCA sets out the conditions for proceeding to the making of a confiscation order. They include that a defendant is convicted of an offence or offences in proceedings before the Crown Court, or that he is committed to the Crown Court for sentence in respect of an offence or offences under various provisions of the Sentencing Act, or that he is committed in respect of an offence under section 70 with a view to confiscation being considered. The court then has to decide whether or not the defendant has a criminal lifestyle, as it was accepted in this case that he did not. Then it has to decide whether he has benefited from his particular criminal conduct and go on to decide the recoverable amount.

These provisions are developed further in section 76. Particular criminal conduct is defined at subsection (3) as “Particular criminal conduct of the defendant is all his criminal conduct which falls within ………….. conduct which constitutes the offence or offences concerned …….". Subsection (4) provides: "A person benefits from conduct if he obtains property as a result of or in connection with the conduct." So it is clear that the benefit which the court needs to identify is the benefit obtained "as a result of or in connection with" the criminal conduct of which the defendant has been convicted, or in respect of which he has pleaded guilty. There is no scope for the court to find that the defendant has committed other or more extensive offences and to go on to identify the benefit which he has received from such further offending. This is apparent from the clear words of the statute but is in any event confirmed by the commentary in Blackstone’s Guide to POCA, at paragraph 2-58, referring to the distinction between general and particular criminal conduct:

"The crucial distinction is that an inquiry into particular criminal conduct is restricted to the offences which are proved or admitted in the current proceedings, including offences taken into consideration (section 76(3)). The prosecution cannot embark on a trawl through the past and the judge cannot apply the assumptions. The benefit resulting from the offences must be proved on the balance of probabilities by evidence and necessary inference from the circumstances."

The argument on behalf of the LPA was that t the words "in connection with" in section 76(4) are wide words which are capable of extending the scope of the relevant benefit, and did so in this case, with the effect that the benefit received by the appellant over the whole period since 2007 was obtained in connection with the conduct of which he was convicted, that is to say in connection with the offence committed on or about 18 February 2016. They pointed out that the offence of failing to comply with the Enforcement Notice was a continuing offence which occurred at any time after the end of the period for compliance (see the terms of section 179(1) and (2) of the 1990 Act). It had been determined by a planning inspector on appeal that there had been no compliance with the enforcement notice since 18 February 2005 The date by which the appellant had been required to comply with the Enforcement Notice). The council’s contention, therefore, was that this was a case where there was clear and uncontested evidence of criminal conduct over a lengthy period from 2005.

The Court of Appeal’s attention was drawn to R v Sangha [2008] EWCA Crim 2562, but there is nothing there, in their lordships’ judgment, which entitles a court to extend the meaning of particular criminal conduct beyond the conduct of which a defendant has been convicted or in respect of which he has pleaded guilty. The benefit obtained as a result of or in connection with such conduct must be referable to the offence with which the defendant is charged and of which he is convicted. It is not open to a court in confiscation proceedings to find that benefits obtained over an extended period were obtained in connection with the commission of an offence on a single day - at any rate on the facts of this case. The rent obtained by the appellant letting out the flats in question from 2005 or 2007 onwards could not be regarded as having been obtained in connection with the criminal conduct of which he was convicted, which consisted only of being in breach of the Enforcement Notice on a day on or about 18 February 2016.

The appeal against the confiscation order was therefore allowed. The benefit which the appellant obtained was limited to a single day's rent which, the Court was informed, amounted to £58. Accordingly, the Court of Appeal quashed the confiscation order made by the Crown Court and substituted an order in the sum of £58. (The £25,000 fine was nevertheless upheld.)

Local planning authorities should derive two points from this judgment. First, care must be taken over the drafting of the summons or indictment. If the offence is one that has continued over a lengthy period, then the charge should relate to the whole (or substantially the whole) of that period. The second point is slightly more difficult. It seems that the Court of Appeal accepted in Panayi that the type of conduct involved in this case did not amount to a criminal lifestyle in accordance with the presumptions laid down in POCA. If that is to be taken at face value, then it would appear to cut down the potential extent of confiscation orders under POCA in planning cases.

The point is a ‘difficult’ one because it had previously been my understanding that a defendant has a 'criminal lifestyle' if one of the offences of which he is convicted falls within the statutory catalogue in Section 75 of POCA. The list includes “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence", although this provision is not satisfied unless the defendant obtains relevant benefit of not less than £5,000. [Section 76 of POCA provides that “criminal conduct” is conduct which constitutes an offence in England and Wales. “General criminal conduct” of the defendant is all his criminal conduct, and it is immaterial whether that conduct occurred before or after the passing of the 2002 Act, or whether property constituting a benefit from that conduct was obtained before or after the passing of this Act. A person “benefits” from conduct if he obtains property as a result of or in connection with the conduct. If a person benefits from criminal conduct his benefit is the value of the property obtained.]

It was on this basis that the Court of Appeal upheld a substantial compensation order in Basso & anor v. R. [2010] EWCA Crim 1119. However, there appears now, as a result of Panayi, to be some uncertainty as to whether a Crown Court can calculate the amount of a confiscation order under POCA on the basis of ‘general criminal conduct’ (so as to mulct the entirety of the proceeds from the date when compliance was required to the date of conviction), or whether the continuation of the offence over more than six months cannot, in itself, be taken to be “general criminal conduct” or to amount to a “criminal lifestyle” (notwithstanding the actual wording of section 75), so that in a planning enforcement case the confiscation order may be calculated only in respect of the defendant’s particular criminal conduct, i.e. restricted to the period covered by the offence that has actually been charged.

I confess that I am somewhat confused by the apparent inconsistency between Basso (and other similar cases in the past few years) and the decision now reached by the Court of Appeal in Panayi. This apparent discrepancy does perhaps suggest that this is an issue that may perhaps have to be reviewed, either by a differently constituted Court of Appeal in a future case, or by the Supreme Court.


Monday, 1 April 2019

BREXIT – the Final Act (Scene Two)

[I had intended that my next blog post would be on a planning law topic, as there has been another Court of Appeal decision on confiscation orders under POCA, which seems on the face of it to cut down the potential size of such orders. However, I have not yet had time to get my head around this judgment, and so it will have to wait a few days. So I’m afraid that, today at least, it’s Brexit yet again.]

It seems the Brexiteers are getting desperate, and are casting about for various legal devices by which they could ensure that, despite current parliamentary obstacles being put in its way, Brexit will actually occur, either on 12 April or (at the latest) on 22 May. However, the ideas they have been coming up with are both legally and constitutionally dubious, notwithstanding the apparent support expressed for such devices by certain right-wing academics. It is much the same right-wingers who have been muttering about the constitutional propriety of the current efforts to find some acceptable compromise that might gain majority support in the House of Commons.

Among the suggestions that the Brexiteers have made is that the Queen could or should withhold Royal Assent to any legislation passed against the wishes of the government (!), for example if it were to require a confirmatory referendum before Brexit could become effective. Another possible ruse is that parliament might be prorogued as a device to ensure that a ‘no deal’ Brexit occurs by default on 12 April.

One only has to state these possibilities to appreciate the enormity of such proposals. Both ideas involve the use of the Royal Prerogative, but it is a fundamnetal principle of the constitution that the Royal Prerogative can be exercised only in a constitutional manner, and not arbitrarily. Since 1688, our monarchy has been a ‘constitutional monarchy’, in the sense that the monarch can rule only with the consent of parliament, and the scope for the exercise of the monarch’s own political will has, by convention, become ever more constrained, so that it is now firmly established that the monarch must not descend into the political arena, either in terms of expressed opinions or in the exercise of the Royal Prerogative. There are, of course, instances in which the government (the Executive, to use the language of constitutional law) exercises the prerogative on behalf of the Crown, but even this has been increasingly constrained by convention, and even by law, as we saw in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

Let us look first at Royal Assent to parliamentary Bills. This is the last step in passing a Bill, which then becomes an Act of Parliament. There are two points that should be made. First, it is “the Queen in Parliament” in her capacity as a component part of the Legislature, who gives the Royal Assent, and by convention this is never withheld. The second point is that a Bill presented for Royal Assent is parliament’s Bill. It may (or may not) have been proposed by the government, but it is Parliament, and Parliament alone, who owns the Bill. It is nonsense, therefore, to suggest (as some legal and political commentators who should have known better have done recently) that Royal Assent might be withheld in respect of a Bill that has been passed by the Lords and Commons against the wishes of the government. The Executive has no power, and no right, to demand that the monarch should withhold her Royal Assent to a Bill that has been duly passed by both Houses of parliament. Subject to today’s Business Motion, it is possible that a Bill may be introduced by back-benchers on Wednesday of this week which would have the effect of changing the basis on which Brexit is concluded and implemented. If such a Bill were to be passed (and I make absolutely no predictions on that score) then, irrespective of the views of the government, there is absolutely no legal or constitutional basis on which Royal Assent to this Bill could be withheld.

It is possibly because they are well aware of this that certain Brextremists are proposing, as an alternative, that parliament should be prorogued long enough for a ‘no-deal’ Brexit to occur by default on 12 April, without parliament having any opportunity to prevent it. In this case, it is the government that proposes the prorogation of parliament but, here again, the power of prorogation must be exercised constitutionally. It would be grossly improper for the government (any government) to ask the monarch to prorogue parliament with the express intention of frustrating the apparent will of parliament, and in particular of the House of Commons. My impression is that this kite is not being flown by No.10 or by the Cabinet Office, but comes solely from the ‘Brextremists’ (which may or may not include a handful of cabinet ministers). In practice, I would hope that the Cabinet Secretary would make it abundantly clear to the PM and her advisers that prorogation for this purpose would be a wholly unacceptable exercise of the Royal Prerogative, and would drag the Queen into the political arena in a completely unconstitutional way. The Palace would no doubt make it clear to the Cabinet Secretary in any event that the Queen would strongly deprecate being involved in political controversy, and that the suggested prorogation of parliament for such an improper purpose would be constitutionally unacceptable.

Turning to today’s proceedings in the Commons, it is entirely proper for the House to take control of its own agenda, even to the extent of proposing and passing legislation. Suggestions to the contrary are based on a wholly exaggerated, and incorrect, view of the role of the Executive in relation to the legislative process. As I explained last week, the practices that have usually obtained by reason of most governments having a working majority in the Commons cannot thereby be elevated to the status of a constitutional convention. The present government does not have a working majority, and has hitherto been forced to rely on a ‘Confidence and Supply’ arrangement with the DUP. This, however, does not guarantee that the government will always get its way in parliament, and it certainly does not entitle the government to expect that it will. One of the problems that the May government seems to have had since June 2017 is that it has attempted to proceed as if it had won an overall majority in the last General Election. But the limits to its power are now being demonstrated on a weekly, almost daily, basis.

I don’t propose to discuss what may emerge from today’s Commons sitting. I discussed it generally in my last blog post, and it is still not clear how the government might proceed in the light of any motion or motions that might be passed today. Once again, as so often in recent months, we shall just have to wait and see. But that wait may not be long; the government may make its intentions known at the end of today's debate, or tomorrow, and there are quite likely to be further developments this week.

UPDATE 2 April: The headlines are screaming this morning that the Commons again failed to support any of the options placed before them yesterday, but what all the commentaries seem to miss is that in three of the votes up to 100 Members of Parliament failed to vote at all, and on the most sensible proposal of all, a fall-back position providing for the revocation of Article 50, but only if at the last minute this is the only way of preventing a disastrous No-deal Brexit, more than 150 members abstained.

With the exception of this last vote, the abstainers overwhelmingly comprised members of the Cabinet, other ministers and ministerial aides (PPSs). It is therefore the Government which is responsible for the current impasse. On such an important issue as Brexit, on which even the government is divided, ministers should have had a free vote, as they should in any further votes on Wednesday. It is quite clear that they were instructed to abstain yesterday, and this instruction should now be rescinded. Otherwise, the blame for any continuing impasse will lie solely at the door of Theresa May. (Perhaps we should start calling her Pontius Pilate, or perhaps the Emperor Nero.)

As for the final vote, on Article 50, which is an essential insurance policy to prevent the UK crashing out of the EU on 12 April ‘by mistake’ (or by default), the Labour front bench also failed to support this motion, so that the total number of votes cast on both sides in that division fell to only 483. So the Labour leadership must bear part of the blame for the failure of this final motion.

If a No-Deal car-crash Brexit is to be avoided and if, as seems likely, there is no realistic prospect of May’s draft Withdrawal Agreement being approved by the Commons, then a lengthy extension of Article 50 (which must be for a specific purpose – either a General Election or a Confirmatory Referendum) or the revocation of Article 50 altogether are the only other possibilities, and in the end one of these two alternatives will have to be the course that the UK follows.

UPDATE 8 April: It just gets worse and worse. Trixie May has less than 48 hours now to pull Brexit out of the fire. She ain't gonna do it. If she gets no joy from the EU at Wednesday's summit (and this is looking increasingly likely), the only option that will then be left, in order to avoid a car crash No-deal Brexit on Friday night, will be to revoke the UK's Article 50 notice. This needs to be put to parliament on Thursday, and communicated to the EU during Friday at the very latest. I don't pretend that this will put a final end to Brexit; but it will stop the clock, and give us breathing space (without the pressure of any deadline) to have a thorough rethink of the whole Brexit issue. And in the meantime I shall look forward to voting in the elections for the European Parliament in May, to ensure proper representation of the UK in Europe for as long as our membership of the EU continues.

UPDATE 12 April: Well, I suppose we can allow ourselves a modest sigh of relief. We will not be crashing out of the EU tonight. The government will continue to negotiate with the Labour front bench, although the prospects of reaching an agreement that would enable May's deal finally to be passed by the Commons still don't look good. When the Commons gets back after its Easter hols, there will be barely 4 weeks left before 22 May within which to push May's draft withdrawal agreement over the line (with or without Labour support), failing which the European parliamentary elections will have to held on 23 May. Personally, I am looking forward to voting in that election and securing proper representation for the UK in Europe for the foreseeable future.

As to the period between 23 May and 31 October, it is impossible to make any predictions, but don't be surprised if the deadlock continues. My guess is that Theresa May stands a better than 50:50 chance of remaining PM for several more months, whether the head-bangers on the right wing of her party like it or not.


Thursday, 28 March 2019

BREXIT – the Final Act?

I did warn you that I might very well return to Brexit before getting back to planning law, and this week I have every excuse for doing so. It is a subject that is too important to ignore.

A number of people, both inside and outside parliament, have asked whether it is right that MPs should wrest control of the proceedings from the government, and have suggested that this breaks the convention that ‘the executive proposes and Parliament disposes’. Abrogating this principle, they say, sets an unhealthy precedent. I respectfully disagree.

The House of Commons has always had complete control of its own procedure, and therefore it was entirely constitutional, and consistent with the House’s own rules, that the House voted by a clear majority on Monday to take control of its Order Paper to the limited extent that it has done this week. There is no constitutional convention that the executive has control of proceedings in parliament (and I speak as someone who, as a law student albeit many years ago now, specialised in constitutional and administrative law, and took a particular interest in parliamentary procedure – an interest that I have maintained ever since). Control of the House of Commons Order Paper by the executive is a practice that has been followed for some years past, not least because successive governments have generally had a good working majority and could therefore maintain complete control of Commons procedure by means of that majority, but it is not a centuries-old practice, and it is certainly not a constitutional convention.

Turning to the proceedings in the Commons yesterday, there seems to be widespread misunderstanding as to the nature and purpose of yesterday’s backbench-led debate. In the case of Tory Brexiteers, this was either wilful or feigned ignorance, as they were present when the House agreed this procedure, and so they have no excuse for pretending that it served no useful purpose or was in some way improper. It is surprising, on the other hand, that large sections of the press seem to have misunderstood the position too.

The important point is that yesterday’s debate was the first part of a two-stage process. Sir Oliver Letwin and his co-sponsors foresaw that it was entirely possible that none of the propositions that were put before the House of Commons yesterday would receive majority support. It was for that very reason that a second day’s debate was provided for in the business motion that was adopted by the House. In the meantime, the voting process yesterday served the useful purpose of testing the relative strength or weakness of support for the various options that were put forward. The second stage of the process, which is due to take place on Monday, will take at least two of the propositions that received the greatest measure of support, and will ask the Commons to vote specifically on those propositions.

Motion J, proposed by (among others) Ken Clarke, Hilary Benn, Sir Oliver Letwin and Yvette Cooper, which was lost by only 8 votes, would instruct the Government to ensure that any Withdrawal Agreement and Political Declaration negotiated with the EU must include, as a minimum, a commitment to negotiate a permanent and comprehensive UK-wide customs union with the EU; and enshrine this objective in primary legislation.

Motion M was proposed by Dame Margaret Beckett and others. It was lost by only 27 votes, and would provide that this House will not allow in this Parliament the implementation and ratification of any withdrawal agreement and any framework for the future relationship unless and until they have been approved by the people of the United Kingdom in a confirmatory public vote.

No other motion came this close to being accepted. The majority against “No Deal” was 240, and against a “managed No Deal” it was 283. The suggestion for a “Common Market 2.0” was defeated by 95 votes, and a proposal for an EEA/EFTA arrangement was rejected by 312 votes. Labour’s alternative Brexit failed to gain support by a margin of 70 votes.

Possibly the most important motion, which had all-party support (with the sole exception of the DUP), was a carefully worded ‘backstop motion’ proposed by Joanna Cherry QC. This would have provided that :

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

This is a proposition (even though it was rejected by 109 votes) that may well merit much more careful consideration than it received yesterday. The point about this motion (as Dominic Grieve pointed out) is that it is there in extremis. It is not there to summarily revoke Article 50, but only to do it in the event of circumstances where there is no alternative and no ability to get an extension that might deliver a referendum, for example, or some other conclusion.

We shall have to see on Monday what (if anything) emerges from this exercise.

In the meantime, apparently not today but possibly tomorrow, the government may (or may not) attempt to bring back its draft Withdrawal Agreement for ‘Meaningful Vote 3’. Whilst 29 March is no longer Brexit Day, by virtue of the SI approved yesterday in addition to the agreement reached at the European Council last week, it remains the deadline for approving the draft Withdrawal Agreement. Failing such approval by tomorrow at the latest, the 12 April leaving date comes into effect, and this will mean a ‘No-Deal’ Brexit, unless the government puts forward a proposal for a much longer extension (of which more below) or revokes Article 50 altogether.

At present, the chances of the government getting its ‘deal’ approved before this deadline appear to be extremely slim. If the government doesn’t think it will win, then rather than risk another humiliating Commons defeat it may not bring it back to the Commons at all. There is also a risk that the ‘double jeopardy’ rule invoked by the Speaker could prevent the ‘deal’ being brought back for a third vote in any event, and finally there is the distinct possibility of its being defeated if it does come before the House again - The DUP cannot stomach the Irish back-stop, and this combined with the votes of a significant number of Brextremist head-bangers who will never vote for May’s deal will very likely sink it.

What then? Well, a car-crash ‘No Deal’ Brexit on 12 April is still a distinct possibility and, as things stand at the moment, the most likely outcome. If the government really does want to avoid this (and there is considerable uncertainty as to Theresa May’s intentions) then they could ask the EU for a significantly longer extension – at least 9 months, and quite possibly longer. But it is abundantly clear that this would be agreed by the EU only if this delay is for a specific purpose – i.e. either in order to organise a fresh referendum or to hold a General Election. Revocation of Article 50 before 12 April is the only other realistic option.

If it becomes apparent that May is intent on a kamikaze mission to deliver Brexit come what may, and is prepared to drive the bus over the cliff, if this is the only way of delivering her ardently yearned-for political legacy to the British people, then the only way of stopping it would be a full-blown cabinet and parliamentary revolt, aimed at removing her from office. This might necessitate a Commons confidence motion supported by at least a proportion of Tory MPs, followed by the interim appointment of a caretaker prime minister. It is undoubtedly a long shot, so maybe we should start hoarding the bog-rolls after all.


Friday, 22 March 2019

BREXIT – Back from the brink?

Trixie May is still up to her tricks. (Perhaps we shouldn’t be surprised - it’s in the nature of the beast.) MPs should be very wary of what the government is offering in the way of government-sponsored votes in the next week or two; they may not be what they seem to promise .

Next week, the House of Common has one final chance (and perhaps their best chance) to take control of their own Order Paper, so as to ensure that they rather than the Executive, can call the shots over Brexit. .

The ‘meaningful’ vote (MV3) may or not be brought back before the Commons next week. It certainly should be, but don’t be surprised if Trixie May tries to find some excuse for postponing this yet again. My guess is that Mr Speaker will allow the vote this time, because it involves a different end date, and so would arguably be different in substance from ‘MV2’. Present indications, however, are that May’s draft withdrawal agreement could be voted down by an even larger majority than the 149 votes by which it was rejected last time. .

Far more important than MV3, however, is that the Commons now has the chance to take control of the agenda and to assert their will over the government. The EU Council hinted strongly on Thursday night that this is what they would like the House of Commons to do, rather than allowing the PM to pursue her monomaniacal mission to ‘deliver Brexit’ at any cost to the country and its hapless citizens. .

Ministers were suggesting today that the PM would be prepared to allow ‘indicative votes’ to be held on various alternative future relationships with the EU, but it has become clear that this only relates to the nebulous ‘political declaration’ that accompanies the withdrawal agreement; Trixie May is not prepared to allow the Commons to consider an alternative to the withdrawal agreement itself. This would entirely negate the (apparently) promised free vote on a series of indicative votes. .

Members of Parliament must resist ministerial blandishments, and insist on taking over the conduct of Commons business themselves rather than relying on nebulous, and frankly dishonest, government promises to allow the House to discuss alternative forms of Brexit (but entirely on the PM’s own terms). They should not allow themselves to be bamboozled by ministerial assurances that the government will make arrangements themselves to facilitate these discussions. .

It seems to me that several things must happen. First, cabinet ministers who are frankly appalled by the course that the PM is still intent on pursuing must insist on steering a different course. A cabinet revolt involving voting for backbench motions or amendments against the PM’s wishes, daring the PM to sack them, might be tactically better than resigning (constitutionally unorthodox though such conduct on the part of ministers may be). Secondly, the Commons must pass the proposal put forward by Sir Oliver Letwin to ensure that the House does at last take control of the agenda from this very untrustworthy Prime Minister. (I am assuming that in any event the government will lay an SI next week to repeal the provision in the 2018 Act that set the 29th March exit date in stone in that piece of legislation, and that this should be approved by a large majority, being opposed only by a handful of Brextremist head-bangers.) .

Finally, the House should seriously consider the advisability of forcing the government to revoke Article 50, as the only reliable means of stopping the clock and avoiding any further risk of the UK crashing out of the EU with no deal. If the whole Brexit issue is still unresolved as we approach the new 12 April deadline, then it will become absolutely imperative to revoke Article 50, and any squeamishness about defying ‘the will of the people’ or not ‘honouring the result of the referendum’ must be firmly put aside in the national interest. I have signed the petition on the government website calling for the revocation of Article 50, and I would urge as many readers as possible to do likewise (and tell your friends to do so as well). .

As I have said before, even revoking Article 50 cannot be regarded as putting a final end to Brexit. It will require either a General Election or a Referendum to resolve the issue of Brexit once and for all. I favour the latter as a more reliable means of resolving the question of Brexit, but only after a suitable interval to allow tempers to cool and to allow a referendum to be properly and fairly organised. To my frustration, prior personal commitments this weekend will prevent my attending the march for a People’s Vote in London on Saturday, but again I would urge you to attend if you possibly can. It is only by demonstrating to MPs the strength of feeling in the country on these issues that they (and particularly the front benches of the two main parties) will understand the shift away from Brexit among the public and will appreciate the need to change course on Brexit. .


[Next week, for at least the first half of the week, I am going to be fully engaged on other matters, and so I won’t be able to pay the close attention to Brexit that I have done in the past week or two. I will try to catch up with evening news bulletins, but you may be relieved to know that I almost certainly won’t have the time to comment further on Brexit (or anything else) until towards the end of next week at the earliest. It could prove to be an important week in the Commons, and may hold the key to the future of Brexit. I shall just have to catch up with the situation as best I can in the light of developments by the end of what promises to be another eventful week.] .


Wednesday, 20 March 2019

Class Q - “Last” used for agriculture?

One problem that seems to recur regularly in relation to prior approval applications for the residential conversion of an agricultural building under Class 3, Part Q in the Second Schedule to the GPDO is whether a former agricultural use was the last use of the building, or whether it has been used for other purposes since then.

It is clear from the wording of paragraph Q.1(a) that a non-agricultural use of the building after its agricultural use ceased would disqualify the building from residential conversion under Class Q. However, it should not be assumed that any other use, no matter how minor, would automatically have this effect.

By virtue of section 55(2)(e), the agricultural use of land and of any building occupied together with land so used is not to be taken for the purposes of the 1990 Act to involve development of the land. It follows that if the building is then used in some way that represents a material change of use, then the agricultural use will be at an end, and will have been supplanted by the new use that replaced it. The crucial question, however, is whether such subsequent non-agricultural use did in fact represent a material change in the use of the building, or whether it was of no real significance in planning terms, so as to have been de minimis.

It cannot automatically be assumed that any use of an agricultural or former agricultural building for some non-agricultural purpose would represent a material change of use. This is bound to be a matter of fact and degree in each case, but, a casual, low key or occasional use for other purposes would not normally amount to a material change of use, if this did not result in any significant change in the character of the building’s use, nor a change in its impact in planning terms. Bearing this in mind, it seems clear that the disqualification in paragraph Q.1 would not apply unless the subsequent non-agricultural use of the building did amount to a material change of use. The disqualification in paragraph Q.1 would not therefore be engaged where any such non-agricultural use was, as a matter of fact and degree, de minimis.

A discussion of the materiality of a change of use will be found in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (Bath Publishing, ISBN978-0-9935836-5-0) in paragraph 3.8 of Chapter 3 in that book.

I do not usually report inspectors’ planning appeal decisions in this blog, but a practical example of this approach to the issue was provided by an appeal decision at Great Totham, Essex (Maldon DC) in July 2018 [3198348]. The appeal building was part of a long standing and larger farm complex which was subdivided in 1988. The LPA suggested that there had been no agricultural activity since 1988 and that the building had instead been used for both commercial and domestic activities. The appellant himself had never operated an agricultural trade or business from the appeal building and it was no longer part of an established agricultural unit. However, this did not mean it had moved away from its historic and lawful agricultural use, and the Inspector noted that planning permission to use the building for purposes unrelated to agriculture had never been granted. On the balance of probability, he therefore found that the building was probably last in an active agricultural use as part of an agricultural unit in 1988.

At points between 1988 and 2004 the appellant operated a number of heavy goods vehicles (HGVs) from the yard as part of an agricultural haulage business. There was nothing to suggest the material being transported derived from an agricultural unit operated by the appellant. However, the HGV licence only permitted the parking of HGV vehicles in the yard. The HGV vehicles were too large to be parked within the appeal building. There was nothing before the Inspector to suggest the barn formed part of this enterprise. The Inspector therefore concluded that the lawful agricultural use, which had not been active since 1988, would have endured even if the building had been used occasionally to support the unlawful HGV business (which seemed unlikely).

The appeal building itself had been intermittently used to store a tractor and other paraphernalia left over from the historic agricultural use, such as apple crates. The barn had also, at points, been used to kennel dogs, to park vehicles and as a workshop. The barn was described as being used for the storage of the owner’s vehicles and farm equipment, but it was unclear what farm the equipment related to. The storage and workshop use appeared to be domestic in nature given the items on show.

It was unclear whether the non-agricultural uses were for unbroken periods of time, more than intermittent and consistently more than low key. As such, the recorded use of the appeal building as a store and workshop was unlikely to be sufficient evidence to demonstrate that a material change of use of the barn from agriculture to some other use had occurred [my added emphasis]. Thus the historic and long standing use as an agricultural building had endured. This suggested that the barn had had a lawful dormant agricultural use since 1988. The LPA had never previously asserted that a material change of use from agriculture to some other use had occurred.

The Inspector observed that the evidence before him was incomplete and finely balanced but, on the balance of probability [my emphasis again], he found that the appeal building, whilst not in use on the 20 March 2013, was last lawfully used in 1988 and this was solely for agriculture in connection with an established agricultural unit. In this respect, the permitted development rights in Class Q of the GPDO applied to the appeal building. The Inspector therefore found that the proposal was permitted development, and concluded that the appeal should be allowed and approval granted.

An alternative argument on the part of LPAs that has occasionally been encountered is the assertion that casual or occasional storage of domestic items, or of logs as firewood renders the use of the building in question ‘ancillary’ to the residential use of a nearby farmhouse (or former farmhouse). However, it should be borne in mind that the farmhouse is a separate planning unit, and so the use of any of the agricultural buildings cannot be ancillary to the use of that other planning unit. (See Westminster City Council v British Waterways Board [1985] A.C. 676.)

In some cases, the mistaken view as to the agricultural building’s ancillary status is based on the assumption that the building is within the curtilage of the farmhouse. But a nearby barn or other agricultural building is very unlikely to be within the domestic curtilage of the farmhouse, because in most cases the agricultural building does not meet the essential functional test in Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195. Furthermore, in most cases it would not meet the requirement laid down in Dyer v Dorset CC [1989] 1 Q.B. 346 of forming one enclosure with the farmhouse. (See also Burford v SSCLG [2017] EWHC 1493 (Admin).) Any doubt on this score was entirely dispelled by the High Court judgment in R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin), which established that nearby farm buildings are very unlikely to be within the curtilage of the farmhouse. [This point has previously been discussed in this blog, on Friday, 15 March 2013 - "Barns near listed farmhouses" - when I analysed the Egerton judgment in some detail.]


Tuesday, 19 March 2019

No surprise

If the government, and No.10 in particular, were taken by surprise by the Speaker’s statement in the Commons yesterday afternoon, then they simply haven’t been paying attention. As the Speaker explained, the issue was raised in a Point of Order by Angela Eagle last week, and several other members (notably Chris Bryant) drew attention to the well-established parliamentary rule that it is not permissible for bills or motions that have been decided upon by the House to be brought back before the House in the same parliamentary session.

Reporting of the Speaker’s statement has been very sketchy, and almost all the reports have omitted the careful explanation he gave for the opinion he has reached. The Speaker’s statement was prompted by Angela Eagle's Point of Order, and he also drew attention to the frequent application of the rule over the years (examples of which were given last week by Chris Bryant). As the Speaker observed, Members on both sides of the House, have expressed their concerns about the House being repeatedly asked to pronounce on the same fundamental proposition. An indication from the Speaker on the lines of yesterday’s statement was therefore a distinct possibility, and really ought to have caused no surprise.

Erskine May (the parliamentary bible) is absolutely clear about this: “A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session.” It goes on to explain: “Attempts have been made to evade this rule by raising again, with verbal alterations, the essential portions of motions which have been negatived. Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.”

Although this rule dates back to 1604, it has been repeatedly invoked in the ensuing four centuries, and whilst a formal Speaker’s ruling has not been required for many years now, the rule is frequently applied on a day-to-day basis by the refusal of the Commons’ clerks to accept repetitive motions or Bills.

The Speaker reminded the House of the conduct of the government in this matter over the past three months. The first scheduled debate on the PM’s “deal” was due to take place on 11 December. However, on 10 December the vote was postponed after 164 speeches had already been made over three of the five days allotted for debate. That postponement was caused not by the Speaker or by the House, but by the Government. Indeed, the Speaker pointedout at the time that this was deeply discourteous to the House and he suggested that the permission of the House for that postponement should be sought. Regrettably, it was not.

After the first “meaningful vote” was lost on 15 January, by a margin of 230 votes (the largest in parliamentary history), a second meaningful vote was expected to take place in February, but once again there was a postponement. It finally happened only last Tuesday, 12 March, and the Government’s motion on the deal was again very heavily defeated. In the Speakers’ judgement, that second motion did not fall foul of the convention about matters already having been decided during the same Session, because it could be credibly argued that it was a different proposition from that already rejected by the House on 15 January. It contained a number of legal changes which the Government considered to be binding and which had been agreed with the European Union after intensive discussions. Moreover, the Government’s second meaningful vote motion was accompanied by the publication of three new documents—two issued jointly with the EU and a unilateral declaration from the UK not objected to by the EU. In procedural terms, it was therefore quite proper that the debate and the second vote took place last week. The Government responded to its defeat, as they had promised to do, by scheduling debates about a no-deal Brexit and an extension of Article 50 on 13 and 14 March respectively.

There have been rumours (so far unconfirmed) that a third, and even possibly a fourth, meaningful vote motion would be attempted. Hence the Speaker’s statement yesterday. The Speaker’s conclusion is this: If the Government wish to bring forward a new proposition that is neither the same nor substantially the same as that disposed of by the House on 12 March, that would be entirely in order. What the Government cannot legitimately do is to resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes. This is the test which the Government must meet in order for the Speaker to rule that a third meaningful vote can legitimately be held in this parliamentary Session.

To suggest, as the Solicitor General did yesterday, that the Speaker’s stated opinion has caused a “constitutional crisis” is nonsense. The referee has simply blown the whistle on a professional foul. (As a senior and experienced lawyer, who is surely well-versed in parliamentary procedure, the Solicitor General really ought to know better than to make wild statements like this.)

The anger that has been expressed in some quarters (mainly from within government) is somewhat exaggerated, even perhaps synthetic, as it was becoming clear by yesterday afternoon that the government is unlikely to be able to get its ‘deal’ through the Commons even at the third attempt, and it appeared that in those circumstances the PM would not risk another humiliating defeat, and so would not bring her deal back to the Commons for a third time this week. Last week’s decision regarding a delay to Brexit did not depend on a further vote being held; it simply authorises the government, in the event of the deal not being passed by this Wednesday (for whatever reason), to seek an extension of the Article 50 process.

Reports suggest that Baldrick and the No.10 team have been racking their brains in an effort to dream up all sorts of cunning plans to circumvent the Speaker’s statement, but the obvious key to the situation is to change significantly the substance of the proposition that they wish to put before the Commons. The PM will have to go to Brussels on Thursday to seek a delay to Brexit, which will almost certainly have to be a long one, and a motion could be brought before the Commons next week that proposes a way forward in light of her discussions with the Council of Ministers. (I have previously pointed out that the EU will have to be convinced that there is a tangible reason for the delay – just wanting more time to continue an endless debate in parliament would not be a good enough reason.)

The options, however, in the extremely limited time that is now left before the 29 March deadline, are very limited. In the absence of an agreed postponement, revocation of the UK’s Article 50 notification will be the only means of stopping the clock if a car crash ‘no deal’ Brexit is to be avoided on 29 March.

UPDATE – 20 March (a.m.): If I were a cartoonist, I would be penning a cartoon this morning, showing Theresa May with her hand on the handle of a gaming machine labelled "MV3", staring at it and shouting “I WILL win this time! I WILL!” (and perhaps there might be a caption below the cartoon - "Problem Gambler") I won’t bother to enumerate all of the many obstacles she would have to overcome to win by this means, but the first is actually persuading the EU tomorrow that she can win in this way. Otherwise, even a short delay would serve no purpose whatsoever. Then (assuming the EU does agree to a short extension of time) next week she would have to persuade the Speaker that there really is some significant change in the proposition she wants to put back before the Commons. (Really???). Or she would have to persuade parliament to suspend the rule against repeated votes on the same proposal, which they might not be prepared to do. This really is a cunning plan that could only have been dreamed up by Baldrick. And so the pantomime drags on.


[My wife thinks there is too much about Brexit in this blog (although she strongly agrees with my views on Brexit). But Brexit really is far too important to ignore, and it is now taking up so much governmental and parliamentary attention that not much else is going on at the moment. This will obviously change if or when things become a bit clearer, and ministers can once again pay attention to other pressing matters. You may rest assured that I will certainly cover any new developments in planning law that occur in the meantime, but I make no apology for the amount of attention I am giving to Brexit at the moment, and especially this week, and probably (I expect) next week.]


Monday, 11 March 2019

Brexit – the End-game continues

(The horror film with endless dreadful sequels)

Plus ça change……… Cloud-cuckoo Land proves to have been just as inhospitable an environment for Theresa May as the real world. If the second “meaningful vote” goes ahead tomorrow [but see below], there would appear to be no good reason for those MPs who voted against the PM’s draft withdrawal agreement last time to vote for the unamended agreement this time.

Having repeatedly funked the chance to take control of the process away from this disastrously incompetent government, the House of Commons must vote to take over control of their Order Paper, so that in the perilously short time left before 29 March, the urgent steps needed to prevent the country crashing out of the EU without any deal on that date can be voted through. Merely passing another non-binding motion expressing their opposition to a ‘no-deal’ Brexit simply won’t cut the mustard. What is needed is an emergency Bill, which will have to be rushed through both Houses of Parliament, to cancel the 29 March leaving date and to instruct ministers either to seek a substantial delay to the Article 50 process or to revoke the Article 50 notice to the EU altogether, so that we simply stop the clock. Participation in the elections for the European Parliament in May will be a necessary part of this, and should not be resisted by any of our political parties. It is in the UK’s national interest to be fully represented in the European Parliament until we leave the EU (if we eventually do).

I have already explained in previous posts that merely requesting an extension of Article 50, especially if it is only a short one, will not solve the problem. There is in any case considerable doubt as to whether the EU would agree to only a brief delay, and they may not agree to an extension at all unless they are convinced that there is a good reason for it. Asking for a few weeks’ delay simply in order to continue arguing among ourselves about Brexit would clearly be a totally inadequate excuse for seeking an extension to Article 50. A long delay, perhaps for 21 months to the end of December 2020 (as Olly Robbins was famously overheard to say several weeks ago) is the only viable option. Frankly, a delay to enable a referendum or a General Election to be held are the only two scenarios that would provide a realistic basis for seeking an extension of Article 50. Failing that, formally ending the Article 50 process (which would not require the consent of the EU) is the only alternative.

The main fly in the ointment is the suggestion this morning that Theresa May might after all pull the three votes that were promised for Tuesday, Wednesday and Thursday, replacing the “meaningful” vote tomorrow with only a meaningless “provisional” vote. In view of the complete lack of progress achieved by ‘the Rumpole of Brussels’ (Geoffrey ‘Codpiece’ Cox) last week, and the reported deadlock reached in continuing ‘technical discussions’ over the week-end, it is perhaps understandable that No.10 is unclear as to what purpose would be served by putting May’s unamended deal back to the Commons tomorrow. However, a failure to do so, and to follow it up with the other promised votes (on the principle of ‘no deal’ and a delay to Article 50) would be an unpardonable breach of faith with the House of Commons, and could quite properly be categorised as a contempt of the House, bearing in mind that they were formally announced by the PM at the dispatch box. MPs’ collective patience has already been stretched almost to breaking point, and this might finally prompt a full-blown parliamentary revolt. It has even been suggested that in these circumstances the government could not be sure of surviving another vote of confidence in the Commons. In fact, now is the time for those ministers who forced the PM to promise this week’s series of votes to assert themselves to ensure that they still happen, instead of wimping out as they are all too prone to do.

The PM has chosen very unwisely to engage in a high stakes poker game with parliament and even with her own ministers over Brexit, and she has frankly forfeited any claim to loyalty that she might reasonably have expected from her ministers and from MPs. The time has come to set aside political calculations and to vote solely in the national interest, irrespective of the political consequences of doing so, either for their party or for their own political careers. If they fail to do so, any party or parties that are seen to have brought about or facilitated what promises to be a disastrous Brexit (if it is allowed to go ahead on 29 March) will face a terrible judgement by voters at the next General Election.

UPDATE 12.3.19: ………………plus c’est la même chose. Despite Theresa May’s last-minute dash to Strasbourg last night, “nothing has changed”, to use her own favourite phrase. The draft withdrawal agreement remains unamended. All that has happened is that the assurances that were contained in the letters of comfort that were published by the EU in January have been dressed up to look like something more formal, which the government claims makes them “legally binding”. But, as Keir Starmer pointed out on the Commons yesterday evening, they have no greater legal effect than the original letters of comfort.

So, when the Commons votes on the withdrawal agreement later today, they will be considering an unchanged document that still contains the Irish back-stop, and this will not be time-limited, nor will there be any mechanism that would allow the UK unilaterally to bring it to an end. Since it is very likely to take a good few years (maybe five, seven or even ten years) to conclude a final agreement on trade and other matters that will govern our future dealings with the EU, the Irish back-stop will take effect, and it will continue to operate potentially for an indefinite period, even though this is intended only to be ‘temporary’. I find it difficult to see how Geoffrey Cox can in all conscience change his previous legal advice in this regard.

I frankly have no problem with the back-stop, because it is clearly vital to preserve the Good Friday agreement. However, the withdrawal agreement will still make us rule-takers, rather than rule-makers. The political statement that accompanies the agreement gives only very vague indications of the aspirations of the parties as to the negotiation of the UK’s future relationship with the EU, and leaves us in a very weak negotiating position. There seems to be no logical reason why those MPs who voted against the draft agreement in January should vote any differently this evening. Realistically, however, the numbers voting against it today are likely to be reduced, and I don’t think anyone can predict whether the Commons will now vote the draft agreement through or not. The vote may prove to be quite tight. Watch this space!

UPDATE 11.30 a.m.: The bottom line (literally) of the Attorney General’s updated legal advice is that the legal risk is unchanged. He argues that there is a ‘reduced’ chance of the UK being held in the back-stop indefinitely and involuntarily but, in its essentials, what he is saying is that “Nothing has changed”. It seems highly unlikely that the DUP will be prepared to swallow this, nor is the joint ERG/DUP ‘Star Chamber’ of eight lawyers likely to find this situation acceptable. In the event, the chances of a government defeat this evening now seem to be somewhat greater than the glib assurances from the PM and her deputy appeared to suggest late last night.

UPDATE 13.3.19: By the time Geoffrey Cox’s legal opinion had been digested by everyone yesterday, it had become clear that Theresa May’s latest attempt to re-heat her failed withdrawal agreement was doomed to failure. But despite another crushing defeat in the Commons, it seems that the PM remains defiant. She is clearly the wrong person to be leading or managing this business, but at the time of writing there is no sign that she is prepared to step aside.

Today’s vote on “Deal or No Deal” will probably be passed by a huge majority, but it is clear from the ambiguous wording of the motion which the government tabled yesterday evening that merely voting against ‘No deal’ will not in fact prevent a car crash Brexit occurring on 29 March, even if the actual wording of the motion is amended in today’s debate. Simply passing motions in the Commons is not enough. Positive action will be needed to halt the Article 50 process, and to amend the 2018 Act in which the 29 March exit date is enshrined.

Both today’s debate and the debate promised for tomorrow on the possibility of seeking an extension to Article 50 are completely irrelevant. I don’t need to rehearse again the difficulties that may be encountered in negotiating an agreed extension – I have set them out in previous blog posts. Meanwhile the clock continues to tick down inexorably. .

I have become increasingly convinced that the only way to ensure that a disastrous ‘no deal’ Brexit is avoided on 29 March is to revoke the UK’s Article 50 notice altogether. This does not require the agreement of the EU (as explained in my brief article in this blog on the CJEU’s December judgment), and it would have the advantage of stopping the clock altogether, rather than temporarily postponing a problem that is unlikely to be solved within the limited timeframe that a postponement could offer. I have also previously discussed here the legal requirements for a valid revocation of the UK’s Article 50 letter of 29 March 2017, so these points do not need to be repeated.

After nearly three years, it is no longer sensible to regard the result of the referendum on 23 June 2016 as a current or valid expression of "the will of the people". Assertions that "the people have spoken" and that we must "honour the result of the referendum" are clearly nonsense in light of all that has come to light in the intervening period. So much has changed in the intervening period that the whole question of Brexit needs to be re-assessed in a calm and unpressured way. No doubt there will be some who will shout and holler about it, but when the fuss has died down, we can then get on with a more mature national debate about the whole issue. Another referendum will probably be needed finally to settle the matter, but to suggest that giving people a chance to vote on the issue in the very different circumstances that apply today is in some way ‘undemocratic’ is bizarre. Successive General Elections have been held at shorter intervals than this.

UPDATE 14.3.19 (A.M.): Trixie May was up to her tricks again yesterday, but through her manoeuvrings she only succeeded in turning what should have been a large majority for a government motion to take ‘No Deal’ off the table into another major government defeat. The problem was that the motion she had laid before the Commons involved a double negative that would effectively have nullified the effect of the motion. Unsurprisingly, back-bench MPs of both main parties combined to table amendments to convert the motion into the straightforward proposition that should have been tabled in the first place. One of these amendments, proposed by (among others) Tory MPs Caroline Spelman and Oliver Letwin and Labour MPs Jack Dromey, Yvette Cooper and Hilary Benn, stated simply that the House “rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship” (i.e. on any date).

The Tory whips persuaded Caroline Spelman that her amendment would be ‘unhelpful’, and having had considerable pressure put on her by the whips, she informed the House of her intention to withdraw her amendment, only to be told by the Speaker that she could not do that; she could simply refrain from moving the amendment at the conclusion of the debate, but it would be open to any of the other MPs who were co-sponsors of the amendment to move it in her stead. In the event, the amendment was moved by Yvette Cooper and, although the government whipped their MPs furiously to vote against the amendment, it was passed by 4 votes.

In the face of this amendment the government then turned what had been promised on their side of the House as a free vote on the main motion into a whipped vote against their own motion (as now amended), with the bizarre result that Trixie May was now voting against the substantive motion that had been tabled in her name! Four cabinet ministers and a number of junior ministers abstained, rather than voting against the amended motion, and it was passed (against the government’s wishes) by 43 votes, thus piling yet one more humiliation on the unfortunate Trixie. But even the most sympathetic observer would have to admit that this really was a self-inflicted injury.

In the meantime, the Commons had decisively rejected the so-called ‘Malthouse Compromise’, which would have proposed a ‘managed No Deal Brexit’ (an idea which had already been summarily dismissed by the EU as unworkable).

But Trixie May still wasn’t giving up. She now tabled the motion for today’s debate, seeking the views of the Commons on a possible postponement of Article 50. This motion (no doubt drafted as a cunning plan by her chief political adviser, one Baldrick) was so convoluted as to be virtually unintelligible on first reading. Here again, though, the motion contains self-contradictory wording which suggests that Trixie May intends to have a THIRD go at getting her failed deal through the Commons next week. Several amendments have already been tabled, and we shall have to see which of these is selected by the Speaker. (One of them, supported by a large number of Brexiteers, seeks to rule out a second referendum. But what are they afraid of? Is it that the result of such a referendum might be to put an end to Brexit? If so, this shows a remarkable lack of faith in the project they hold so dear.)

UPDATE 15.3.19: The PM had a good day yesterday – she didn’t actually suffer any Commons defeats. But on the most critical vote she squeaked home by only the tiniest margin – a majority of just 2. This was on a cross-party amendment that would have allowed backbenchers to take over control of the agenda, and so prevent the government driving the bus over the cliff. The failure of this amendment is disappointing, but it may be re-introduced if the situation gets any worse in the next couple of weeks.

On a free vote, a delay to Brexit was then approved by a large majority. This was on the government’s unamended motion, which envisages a third vote on May’s deal next week. It is a measure of the chaos within the government and the Tory party that more than half of all Tory MPs, including eight cabinet ministers, voted against this government motion. One of these was the Brexit Secretary (Steve Barclay) who had only just wound up the debate for the government, strongly commending the motion to the House (!)

If by next Wednesday (20 March) May’s deal has not been passed, at the third time of asking, yesterday’s motion authorises May to seek an extension to Brexit. If May does succeed in getting her deal passed next week, she will need a short ‘technical’ extension to 30 June in any event, in order to get the necessary legislation through both houses of parliament. The motion recognises, however, that in the event of May’s deal not being passed, a significantly longer delay will be required, and that the UK may then have to participate in the elections for the European Parliament in May.

The attitude of the EU to a delay, beyond a brief ‘technical’ delay, is far from clear, and a wide range of contradictory views has been expressed by European leaders. The issue will no doubt be raised at the EU summit next Thursday and Friday (21 and 22 March) where it should, if possible, be settled. However, it requires unanimity on the part of the 27. Failing an agreed extension, the 29 March deadline for Brexit still applies, and in that case the government really would have to bite the bullet, and unilaterally revoke the UK’s Article 50 notice, as the only way to stop the clock, and prevent a disastrous car crash Brexit at the end of this month.

[Don’t miss next week’s exciting episode!]